Friday, October 4, 2013

The Fear of Too Much Compassion

They charged him with murder. Again. Because 41 years in solitary wasn't enough.

Herman Wallace was one of the Angola 3. Black Panthers at the Louisiana prison known as Angola, serving time for armed robbery, they worked to improve conditions at Angola. They helped organize petitions and hunger strikes to protest segregation within the prison, and to end systematic rape and violence. Wallace helped other inmates learn to read and write. He helped them get their GEDs. He helped them with their legal briefs.

In 1972, the three were charged with the murder of Brent Miller, a guard at the prison. There's substantial reason to doubt whether they did it, but that's pretty much a moot point now, at least for Wallace. He was convicted and sentenced to life. They put him in solitary. Where he stayed for 41 years.

Wednesday, he was freed. United States District Judge Brian Jackson ordered his release because the 1972 indictment charging him with the murder was brought by a grand jury that from which women were systematically and illegally excluded. So Judge Jackson said to let Wallace go, and the Warden at Angola said, in essence,

Fuck you.

To which the judge pointed out that he had the bigger dick.

Let him out, or I'll lock you up.

Which the warden did. And so the 71 year old Herman Wallace was freed. To go into hospice care at the home of friends. Because during his years in solitary, years when they mostly didn't bother checking on his medical condition, well, his liver cancer was well advanced by the time they discovered it.

He died there Thursday night. Peacefully. In his sleep. Lauren McGaughy at NOLA.com and the Times Picayune:

"He passed away in my home," said Ashley Wennerstrom, a long-time friend
and program director at Tulane's School of Medicine. "He
was surrounded by friends and family and love in his last few days."

But this isn't just a story of love and warmth. It's not just a feel-good tale of redemption. This is a story to piss you off. As much as it's the story of Herman Wallace, it's also the story of Inspector Javert District Attorney Sam D'Aquilla. Who had urged the warden to keep Wallace in prison after Judge Jackson ordered his release. And who obtained a new indictment against him Thursday afternon, again charging him with Miller's murder. McGaughy again.

D'Aquilla maintained his stance that Wallace was guilty of Miller's
murder, however, saying the federal judge only overturned the grand jury
indictment and not his 1974 conviction.

“I think he’s a murderer,” he told ThinkProgress. “A federal judge overturned the conviction because of a flaw in the indictment, not a flaw in the conviction.”

. . .
When asked whether D’Aquilla considered the value of expending resources on a case that likely would never see Wallace’s return to jail, D’Aquilla said he had.“I actually determined that he was sentenced to life and he didn’t fulfill his sentence,” he said. “It’s not fair to have him not in jail. His medical condition or something like that didn’t nullify the actions that he did.”He added, “I’m a prosecutor. This is what we do.”

D'Aquilla told Flatow that he intended to have Wallace arrested this morning. But it was too late.

Of course, you shouldn't think D'Aquilla was hard hearted. He figured the trial wouldn't occur until at least December. By which time, he expected Wallace would be dead. So he'd have died legally innocent. Incarcerated, of course, but legally innocent. McGaughy explains.

But D'Aquilla denied the move was political, saying only "we just had concerns about compassion issues."

Yeah. Too much damn compassion.

Look, I don't know what happened. Neither do you. (And neither, by the way, does Sam Aquilla. The evidence against Wallace appears to be seriously problematic, but that doesn't mean he didn't do it. Maybe he did. Maybe not. Frankly, I don't much care.

41 years in solitary while getting sicker and sicker and then release just days before he died? That's plenty of punishment in my book. Reindicting him? To what possible end?

Oh, yeah. Because it's more important that people keep paying and paying and paying than that we show any mercy. Because the good people of Louisiana know that enough is never enough and that more pain can always be inflicted. And should be. Because it's better to err on the side of cruelty than compassion.

For the rest of us though, there's this.

Among his last words were, "I am free. I am free," said Wallace's
counsel, who added he had "no hate in his heart...despite the cruelty
(he) was shown."

There's a real difference in personality types between prosecutors and defenders. When you're somewhere other than the extremes of the continuum there can be grounds to agree, or agree to disagree.

But D'Aquilla is way at one end. People like him should not even be lawyers, let alone prosecutors. He's a deeply disturbed individual. He's much more like the guilty people he's prosecuting than he is like anyone normal. And all the innocent people he prosecutes are better than him, something he realizes deep down which makes him fight that much harder to maintain his denial.

Public prosecuting as pathology. That's what the Herman Wallace episode illustrates. That, and probably the banal realities of law enforcement/prison guard political clout. The misplaced absolutism is their trademark.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
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